Emancipation of Minors: A Major Problem

A bird in hand is worth two in the bush. Don’t let your child become emancipated.

What’s the matter with kids today? Sometimes, what’s the matter with them is that they’re adults. That’s because California’s Emancipation of Minors Law (EML) provides that a child is an adult for most purposes once he’s emancipated. If you’re a struggling parent, your child’s emancipation is no “minor” problem. His earnings will no longer be your property1 and will no longer be payable to you from his employer.2 If your child is threatening to seek emancipation, and you’re scared you might lose out on his earnings, here’s an adult discussion about how he might become emancipated and what, if anything, you can do to stop him.

I. How a Minor Can Become Emancipated

Your child can become an emancipated minor in one of two basic ways: (1) by operation of law (i.e., non-judicial emancipation); and (2) by judicial declaration (i.e., judicial emancipation). Your child can become emancipated by operation of law if he gets married or joins the U.S. military. Alternatively, he can become emancipated by judicial declaration if he petitions a court for emancipation and proves to a judge that he’s at least 14 years old, lives separate and apart from you (either with your consent or acquiescence), manages his own financial affairs, and doesn’t derive any of his income from criminal activity.

A. Emancipation by Operation of Law

Marriage is the first way a minor can become an adult by operation of law. You might be surprised to learn that such an “adult” can be an elementary school student. That’s because California is one of only three states (Mississippi and Arizona being the others) that doesn’t have a minimum age for marriage. California law deems a minor to be “capable of consenting to and consummating marriage” upon obtaining judicial consent and, if possible, parental consent.3 Luckily, few judges in this state will find that star-crossed lovers under 18 years old are capable of consenting to marriage.

Enlistment in the military is the second way a minor can become emancipated by operation of law. Under federal law, no one under age 17 may enlist.4 Curiously, California law provides that a court may, upon a minor’s request, “summarily grant consent for enlistment by the minor” if: (1) the minor is at least 16 years old; (2) he resides in California; (3) his parent or guardian is “unavailable” to consent to the enlistment.5 If your little Audie Murphy thinks he’s going to enlist before he turns 17, you can breathe a sigh of relief. Because California’s minor enlistment law conflicts with federal law, the former is probably unconstitutional.

B. Emancipation by Judicial Declaration

Your child won’t be joining the military without your consent before he turns 18. Unfortunately, he can still seek an order freeing himself from your custody and control well before he turns 18. Under the EML, a minor as young as 14 years old can petition for a declaration of emancipation from the Superior Court of the county where he resides or is “temporarily domiciled,”6, as long as he has a verifiable address there.7 So if you live in Los Angeles County, and your 14-year-old runs away to Modoc County to file his petition, you better book a flight if you want to stop him.

The requirements for making a proper petition for emancipation aren’t difficult. Under the EML, a minor’s petition for emancipation must state “with specificity” that: (1) he’s at least 14 years old; (2) he willingly lives “separate and apart” from his parents or guardian with the consent or acquiescence of his parents or guardian; (3) he’s managing his own financial affairs; and (4) the source of his income doesn’t derive from criminal activity.8 The court must, not may, sustain the petition if it finds that the minor has established those facts and that emancipation wouldn’t be contrary to his best interest.

II. How Parents Can Stop Their Kids from Becoming Emancipated

If you want to stop your child from obtaining a declaration of emancipation, you better move quickly. The law requires a courthouse to bend over backwards to help your child obtain a declaration of emancipation. The clerk at the filing window must, not may, “immediately” provide or direct your child to provide the petition to the proper court.9 The court must, within 30 days from the filing of the petition, (1) grant the petition, (2) deny the petition, or (3) set a hearing on the petition to take place within 30 days.10 The court can even grant the petition without a hearing in some cases.11

The law authorizes only two ways to undo a declaration of emancipation: (1) the court rescinds the declaration; or (2) the court voids the declaration. First, the D.A., the child’s conservator, or the child himself can petition to rescind the declaration if: (1) he no longer has any means of support12; (2) he’s indigent (e.g., his only income is public assistance13); and (3) rescission wouldn’t be contrary to his best interests.14 Second, “any person” can petition to void the declaration, but only if the minor obtained it by fraud or by withholding material information (e.g., he claimed he had a “job” but was actually just dealing drugs).15

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.

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